Counsel for:

The Complainant:-  Shri Sunil Kumar Agrawal Advocate.

The Opposite Party No.1 :- Shri D.R Bohidar  Advocate.

The Opposite Party No.2 :- Shri M.R.Mohanty & Associate ,Advocates

ORDER

Shri A.K.Patra,President:

1. Heard. Perused the material on record. We have our thoughtful consideration      on the submission of learned counsel for the parties.
2. Complainant Pushpanjali Patra  has filed this complaint alleging deficiency of service & Unfair Trade Practice on the part Ops for their inaction to  settle the death claim under insurance policy vide No –P0021400007/4113/100233 (Package Policy) on account of accidental death of her husband .
3. The complainant has prayed for an order :-Directing the   Opposite party No.-1  to settle the death claim of Rs.15,00,000/- (Rupees Fifteen Lakh) only and to pay a sum of Rs.15,000/- as compensation for the mental agony & harassment along with litigation cost of Rs.10,000. And further pray for any other relief as the Honorable Commission deemed fit & proper in the circumstances in favour of the complainant for the interest of justice.
4. Brief facts of the case of the complainant are that, the complainant is the widow of deceased Purnachandra Patra . On dt.30.05.2020 her husband had purchased a HERO Super Splender Motor Cycle Chassis No- MBLJAW175L9C04344 and Engine No.JAO7ABL9C15082 from Neeta Automobiles, Tusura,Bolinger Vide delivery Chalan No – 2876 dt. 30.05.2020 being finance by M/S Hero Fincorp Ltd.(OP NO. 2 ).The husband of the complainant also purchased an insurance policy of MAGMA HDI General Insurance Company Ltd.(O.P No.1) at the same time i.e. on 30.05.2020 paying adequate premium on  being instigated by the  agent of the insurance company. Accordingly, insurance policy vide No.P0021400007/4113/100233 (Package Policy) is issued in the name of  the owner of the vehicle namely  Purnachandra Patra where extra premium of Rs.350/- was  paid for the life coverage of owner-cum- driver risk to an amount of Rs.15,00,000/-(fifteen-lakh) only. Unfortunately on dt.01.06.2020  at about 6.00 P.M the husband of the complainant while returning to his village by driving his said insured Motorcycle  met with an accident near village Pajibahali Chhak  under Ps-M.Rampur  causing physical injury for which he was shifted to M.Rampur hospital  where he was declared dead. The matter of which was reported in  the M.Rampur Police Station vide Ps Case No.85, dt.01.06.2020 corresponding to CT No.169/2020 of the court of JMFC, M.Rampur . After the accidentals demise of her husband the complainant collect the papers of the vehicle and came to know about the said insurance policy and there after approached the said agent of O.P No.1 for registration for settlement of claim of the death benefit under the aforesaid insurance policy but no step has been taken to register her claim there by complainant got harassment and suffer a lot. The O.P No1 mischievously and intentionally has harassed the complainant amount to deficiency of service which cause financial burden to pay installment of the loan of deceased husband to the O.P No 2 . It is pleaded that, after the death of her  husband she receipt the papers i.e. smart card & RC Book of the alleged  motorcycle bearing Regd. No OD-03-S-2279 form the O.P no.2 and serve pleader notice to O.P 1 requesting for settlement of insurance claim under the aforesaid policy within 15 days of receiving of the notice but the O.P No.1 did not respond hence, this complaint is field along with the following documents supported by an affidavit :-

1. True  copy of invoice of the motorcycle dated 30.05.2020, issued by Neeta Automobiles, Tusura,Bolinger Vide delivery Chalan No – 2876 dt. 30.05.2020  in favour of Purnachandra Patra.
2. True copy of insurance policy of the motorcycle policy vide No.P0021400007/4113/100233 (Package Policy) issued in the name of  the owner of the vehicle namely  Purnachandra Patra dt.31.05.2020.
3. True copy of the RC smart card and particular of the motorcycle vide Registration No.OD-03-S-2279.
4. Certified copy of FIR in CT Case No.164/2020  of JMFC,M.Rampur.
5. Certified copy of final from/Report in CT Case No.164/2020 of JMFC, M.Rampur.
6. Certified copy of seizure list in CT Case No.164/2020 of JMFC, M.Rampur.
7. Certified copy of inquest Report  CT Case No.164/2020 of JMFC, M.Rampur.
8. Certified copy of post Mortem Report in CT Case No.164/2020 of JMFC, M.Rampur.
9. Copy of the pleader notice sent to opposite party No.1

5. On being noticed, the Ops appeared and filed their respective written versions.
6. The OP.No. 1 (one) in their written version  has  admitted the facts that , this O.P No.1 is carrying business all over the Odisha and that, it has issued a two wheeler policy – Bond -5 years Act only and one year own damage endorsed certificate of insurance policy- cum- scheduled , Tax invoice vide policy No.P0021400007/4113/100233 in the name of owner  Purnachandra Patra towards his Super Splendor  Motorcycle on 31.05.2020 which was valid from 31.05.2020 to 30.05.2021 and asked to strict proof of the other facts of the complaint . He also preliminary objected that, the allegation is barred by principle of estoppels, waiver, acquiescence, limitation, non joinder and misjoinder of necessary parties. It is further contended that, complainant has never contact any agent of the OP Nol.1 in any way nor has taken any step to registered the claim before the O.P No.1 as no such supporting document has been filed in this case .it is further submitted that, as per terms & condition of insurance policy the complaint should register the death claim before the insurer through the toll free number as mentioned in the policy copy but in this case complaint has never taken any step to lodged the claim through toll free phone number  nor she has informed  the opposite parties through regd. post or by email within the stipulated period of time prescribed. Complainant has not come in clean hand and till date the  complainant has not lodged the alleged personal accident claim before the O.P/ insurer as bound by the insurance policy  as such the complainant has violated the terms and condition of the insurance policy . It is also averred that, the answering insurance company has never committed deficiency of service as alleged in the complaint petition. It is further submitted that, the policy cover only two wheeler-bundled 5 years act only and one year own-damaged as such the complainant does not entitle for any compensation form the answering O.P No.1. The insurance company also submitted that, FIR bearing No 85 was lodged on dt .01.06.2020 for the accidental death of deceased. The investing officer has submitted Final Report as abetted U/S 279/304(A) of IPC & 177/181 & 129 of M.V Act which means vehicle was neither registered nor driver was possessed any DL at the material time of accident which amounts to violation of Sec, 39 of M.V Act as well violation of the policy terms & conditions.  In support of its contention the O.P No.1 specifically quoted the provision of part –II B of the insurance act 1938 as well as GR 36 of Indian Motor Traffic Resolution and averred that as per GR.36 of the  Indian Motor Tariff Personal Accident (PA) cover under Motor Policy Compulsory Personal Accident Cover for Owner –Driver :- The owner of insured vehicle holding an effective driving license is termed as Owner –Driver for the purposes of this section .Cover is provided to the owner –Driver whilst driving the vehicle including mounting into/ dismounting from or travelling in the insured vehicle as a co-driver  and such provision deal with personal accident cover and only the registered owner in person is entitled to compulsory cover where he/she hold an effective driving license. Hence, compulsory PA cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner-driver does not hold an effective driving license. In all such cases, where compulsory PA cover cannot be granted, the additional premium for the compulsory P.A. cover for the owner - driver should not be charged and the compulsory P. A. cover provision in the policy should also be deleted. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her. It is further submitted that the condition provided under Indian Motor Tariff as well as terms and conditions provided under the policy for Personal Accident to the Owner-Driver, the cover of Personal Accident of owner-insured is payable subject to the following conditions must be fulfilled by the Owner-Insured-Driver:-a) the owner –driver is the registered owner of the vehicle insured herein. b)the owner –driver is the insured named in this policy) the owner-driver holds an effective driving license, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules 1989, at the time of the accident. It is further contended that, the complainant has neither lodge any claim before this insurance company nor processing the required MV documents which are mandatory for processing of claim as per policy terms & condition as well to drive any MC in public Road in such circumstances the complainant is not entitle for insurance benefit under the alleged insurance policy and there is no deficiency in service & unfair trade practice on the part of the answering O.P hence there is no cause of action to bring this complaint rather the complaint is to be dismissed with cost.
7. The O.P No.2/Bank has also filed their written version with the contention that, no relief has been sort against this op.no.2 and suing this OP No. 2  having no relief or claim disentitle the complaint to proceed with this case against the OP. No .2 with this version the OP.NO. 2 pray to dismiss the complainant with cost against the Op. No. 2 .
8. To substantiate its case the O.P No.1 has filed the true copy of certificate-cum-Police-scheduled /tax invoice policy No.P0021400007/4113/100233 issued in the name of insured deceased Purnachandra Patra  towards the vehicle Super Splender Motorcycle dt.31.05.2020 valid from 31.05.2020 to 30.05.2025  along with copy of the terms & condition of the said policy .Further ,the PO No has filed an affidavit of one Saubhagya Ranjan Mohanty, Manager ,MAGMA HDI General Insurance Col. Ltd as evidence to substantiate their written version. The learned advocate for the complainant submitted that, the averment of the complainant being supported by an affidavit of the complainant be treated as evidence of the complainant to substantiate her claim in this complainant.
9. We have carefully considered the arguments advance by the Learned Council for the parties and thoroughly examine the materials available in the record, gone through the case laws cited by the learned council of the parties.
10. The dispute between the parties revolves around the death claim being made by the complainant over the accidental death of her husband who was insured for an amount of Rs.15,00,000/- by the O.P No.1 on receiving of premium of Rs.350/-.
11. The main question that need to be decided  in this case is that,:- whether the insured owner-Driver is entitle to any risk coverage or compensation under the said insurance policy vide No.P0021400020/4113/117537 and whether the O.P s are Unfair Trade Practice & deficient in service causing injuries  to the complainant ?
12. The learned counsel for the Op No. 1 submitted that, neither the police authority seized any driving license of the owner-Driver/insured  nor the complaint has filed any driving license of her deceased husband so all so  M.Rampur police has submitted the  Final Form as F.R Abated U/S 279/304(A) IPC R/W Sec.177/181/196 of M.V Act  against the deceased rider Purnachandra Patra as such in absent of any driving license the O.P insurance company is not liable to pay insurance benefit to the complainant and that, the present case has no  merits need to be dismissed with cost.
13. Here in this case, it is proved on admission that, deceased Purnachandra Patra  Majhi (husband of the complainant ) was  insured under a package policy of the O.P No.1 vide policy   No.P0021400007/4113/100233 and it was in force as on date of loss i.e. dt. 01.06.2020. It is contended  that,  extra premium @rate of 350/- for the life coverage of owner-driver is accepted by the insurer/O.P No.1 with a promise to Pay Rs.15,00,000/-(Fifteen Lakh) to the nominee/LRs  in case of accidental death of owner-driver provided that the person driving holds an effective Driving license at the time of accident .So also it is not disputed in any manner by the Op s that ,the  complainant is the widow of the deceased insured /owner of the alleged vehicle namely Purnachandra Patra.
14. The complainant has filed the certified copy of FIR ,Charge sheet/final report, property seizure memo, inquest & post-mortem report of deceased insured Purnachandra Patra,  Inspection Report on Fatal Accident ,statement of witness recorded under 161 of Cr.P.C in FIR in CT Case No.164/2020  of JMFC, M.Rampur. On perusal of the said papers it is proved that, Purnachandra Patra.the husband of the complainant, died in an accident while driving the insured vehicle/motorcycle.
15. The Learned Advocate for the O.P No.1 placing reliance on the certified copy of final form submitted by the investigating authority of  M. Rampur  Police Station, submits  that, neither the police authority seized any driving license of the owner-driver/insured nor the complaint has filed any driving license of her deceased husband rather the investigating police officer has  submitted  Final Form as F.R Abated U/S 279/304(A) IPC R/W Sec.177/181/196 of M.V Act  against the deceased rider Purnachandra Patra as such in absence  of any driving license of deceased owner-driver, the O.P /insurance company is not liable to pay the insurance benefit to the complainant and the present case is devoid of merits need to be dismissed with cost. .As such the main question that needs to be answered in the present case is whether the insured owner is entitled to any risk coverage or compensation under the policy.
16. Learned counsel for the Insurance company   argued that, deceased Purnachandra Patra meet with an accident due to his own negligence ,he  himself is the tort fisher  as such not entitle for any damages, in this contest we perused the Police paper available on the record and found that, all the witnesses examined by the Police during the course of the investigation are post occurrence  witnesses , no one have seen the occurrence, rather deposed hearsay statements  and basing on those statement the investigating officer of M.Rampur  Police Station as well as in  Inspection Report on Fatal Accident conducted by the RTO Kalahindi simply drawn a presumption that, the driver-owner meet with the accident  due to his  rash & negligence driving of the vehicle without taking pain to verifying the official record   as such these are  not acceptable in absence of an  independent evidence . Non production Driving License before the investigating authority shall not ipso facto proved that deceased was driving his vehicle without driving license. So also simply submission of Final Form as F.R Abated U/S 279/304(A) IPC R/W Sec.177/181/196 of M.V Act  against the deceased rider Purnachandra Patra shall not mechanically  proved the guilty of the deceased without cogent evidence in this regard .No eye whiteness of the occurrence is examined. The charges made in the final Form of the police in FIR No. 85 /2020 of M.Rampur PS corresponding to CT Case No.164/2020  of JMFC ,M. Rampur against the deceased insured has not been proved or hold by any competent court of law .Now before us also  nothing cogent  evidence available on record to prove  the negligence of the deceased except the police paper where the investigating officer has  simply gather post occurrence facts opined as such cannot be acceptable .The investigation officer has concluded that deceased had no valid Dl at time of accident death  without ascertaining the true facts from  any of the competent DL issuing authority, even from the RTO Kalahandi as such it cannot be concluded that, deceased insured had no valid DL at the time of his accidental death.
17.  As on date many experienced driver are losing their life in road accident without fault leaving behind their family at peril is certainly not their pleasure. We may quote here that;-

“An accident is an occurrence or an event, which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is not the happening of an expected but the happening of the unexpected, which is called as an accident” (Baljit Kaur Vrs Aditya Birla Health Insurance, 2022 (1) CPR 90 (Punj) .

13. It is not disputed that, the deceased has paid the premium Rs.350/- only and the insurer/O.P No. 1 has   accepted  the same as such there is a concluded contract between the parties therefore, the insurer is bound by obligation under the said insurance  policy .

14. It may relevant to refer the Indian Motor Tariff framed by the Tariff Advisory Committee for Regulating Motor Insurance in India. We have also perused Section 6 of the Indian Motor Tariff (GR) which deals with personal accident cover for owner-driver. A simple reading of this section reveals that the following three conditions are attached to the cover:-

(a) The owner-driver is the registered owner of the vehicle insured herein; 

(b) The owner-driver is the insured named in this policy. 

(c) The owner-driver holds an effective driving license, in accordance with the provisions of  Rule 3 of the Central Motor Vehicles  Rules,  1989, at the time of the accident.

Here in this case the alleged vehicle is registered in the name of the deceased owner Purnachandra Patra vide Regd. No.OD-03-2279 though issued  on 16.06.2020 and it is found insured as per the provision of M.V Act as such it is clearly proved that deceased owner is law abiding citizen. Hence above condition (a) & (b) is satisfied.

The condition (c) assumes profound significance in the present case.

15.  One of the essential requisite to obtain an insurance policy to cover risk of owner-driver is that, the proposer/owner must have valid driving license i.e only those owner who has DL is competent  to avail  the insurance coverage of owner-driver of PA for an amount of Rs.15,00,000/-.(fifteen lakh )

16. At this point with the cost of repetition, we found it relevant to refer to General Regulation 36 of the Indian Motor Tariff. GR. 36 states as follows:

 "GR.36. Personal   Accident (PA) Cover under Motor Policy (not applicable to vehicles covered under Section E, F and G of Tariff for Commercial Vehicles) A.  Compulsory Personal Accident Cover for Owner-Driver Compulsory Personal Accident Cover shall be applicable under both Liabilities only and Package policies. The owner of insured vehicle holding an "effective‟  driving license is termed as Owner-Driver for the purposes of this section.

Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/ dismounting from or traveling in the insured vehicle as a co-driver.

NB.  This provision deals with Personal Accident cover and only the registered owner in person is entitled to the compulsory cover where he/she holds an effective driving license.  Hence, compulsory PA cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner-driver does not hold an effective driving license. In all such cases, where compulsory PA cover cannot be granted, the additional premium for the compulsory P.A. cover for the owner - driver should not be charged and the compulsory P. A. cover provision in the policy should also be deleted. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her."

17.The Nota Bene appended to the aforesaid Regulation unambiguously clarifies that, Personal Accident cover for owner-driver can be granted when the registered owner holds an effective driving license. In the present case, the insured was granted Personal Accident cover to the extent of Rs.15,00,000/- (fifteen lakh) under the category of owner-driver. It is the case of the OP .No 1/insurer that, the insured did not possess an effective driving license and hence complainant is not entitled to the claim. If that be so, they ought not to have issued the Personal Accident cover for owner-driver in the first place by accepting an extra premium of Rs.350/-for the said purpose. In other words, if they knew that the insured did not possess an effective driving license, they should have declined the request for personal accident cover for the insured under the category of owner-driver so that the husband of the complainant, the owner of the vehicle, may have taken some other IMT endorsement like IMT 15 which covers the owner independently.  Having failed to do so render the insurer /OP.No.1 is squarely liable for deficiency of   service. (Reliance placed on the judgment of Honorable National Commission passed in United  India Insurance CO.Ltd Vrs. Pushpa Devi Mantri on 8^th February 2017)

18. The Learned counsel for the O.P No.1 submitted that, mere acceptance of premium does not give right to any contract. He has drawn our attention to the case of LIC Vrs Raj Vasireddy Komlavalli Komba & Ors. (1984 ) 2SCC 719, where Hon’ble Supreme Court clearly  stated that the acceptance an insurance contract may not be completed by mere retention of the premium or preparation of the policy document rather the acceptance must be signified by sole acts or agreed on by the parties or from which the law raise a presumption of acceptance “.

19. We may think it proper to read  Clause 4(6) of the Insurance regulatory and development authority (protection of policy holder interest )Regulation 2002, proposal shall be processed by the insurer with speed efficiency and all decision their shall be communicate  by in writing within a reasonable  period not exceeding 15 days form receive of the proposal. In this regard the Honorable National Commission in  LIC of India & Anr Vrs. Pramila Basak (2021 NCJ 614 NC ) held that:-”We are of view that eligibility of the proposal to avail a policy needs to be examine before acceptance of premium from him not afterwards. Acceptance of the premium pending decision pertaining to eligibility of the proposal is akin to putting the cart before the horse which is not possible”.

20. The insurer/OP.No.1 can certainly take the defense that ,the owner /Driver of the vehicle at  the time of accident had no valid driving license however the onus of proving that insure owner/ driver was will full breach  of the condition of insurance policy or the contract of insurance lies on the insurer . In the case of United India Insurance Company Ltd. Vrs. Lehru & Others (2003 )SCC 388:2003SCC (Cri) 641 a two  judge bench of Hon’ble Supreme Court has taken the view that the insurance company cannot be permitted to avoid its liability that, the person driving the vehicle at the time of accident was not duly licensed, it was further hold that the  willful breach of the condition of the policy should be established .

21. We may quote Sec 19 of Indian contract Act i.e -“voidability of  agreement without free consent”:-  “when consent to a agreement is caused by coercion , fraud or misrepresentation the agreement is a contract voidable at the option of the parties whose consent was so caused “

22. In case of fraud the contract is voidable at the option of the parties whose consent has been so obtained. It is necessary that, the false statement have been made to induce the other party to enter in to the contract. Further law is well settled that, when there is any misrepresentation by one party, the contract is voidable at the option of the other parties but no such remedy is available if the parties seeking to avoid the contract had the means of discovering the truth with ordinary diligence. Fraud is essentially a question of fact and the person who alleges that has to prove the same (Smt. S Dhawan  Vrs. MS Sha Brother.AIR 1992 SC 155 ). Merely making or mention of fraud or misrepresentation in the pleading is not enough (Yog Raj Vrs Kuldeep Raj Gupta AIR 1991 J& K 26 ). Here ,in this case nothing pleaded or material placed on the record as such for adjudication.

23. The insurer, while accepting the premium form the owner of the vehicle towards compulsory personal accident cover, the insurer is expected to verify if the owner has valid Driving Licenses and on being satisfied with the insurability of the owner ,risk has been taken by the insurer and at this peril it would be un reasonable to place such a high burden on the widow -complainant to make inquiry with RTOs all over the country to established the valid  driving license of her deceased husband at this peril.

24. Here, in this case the condition prescient for acceptance of the premium is the valid DL of the owner of the vehicle. It would be logical for an underwriter to accept the premium verifying the DL of the owner of the vehicle and not otherwise as discussed in the above paras. Therefore by the very fact that the insurer/ the O.P No.1 accepted the premium is satisfied itself the condition precedent i.e valid DL of the deceased owner. As such afore said submission of the learned counsel of the OP.NO.1 is not acceptable in the present facts & circumstances of this case. 

25. The insurer /O.P No.1 has not adduce any scrap of paper to show that the contract of insurance pending in-want of DL of the deceased owner vehicle. , Here in this case neither the investigating officer of the police station where the FIR is lodge has sized any DL of the deceased nor the Joint Inspection Report of the Fatal Accident has concluded that DL of the deceased is not produced and have not taken pain to verified its own office RTO, Kalahandi vy whisperer about the Driving license so also the complaint has not filed any driving license of her deceased husband does not necessarily mean that the decease had no valid DL at the time of accident. Nothing material placed in the record to prove that deceased had no valid driving license at the time of accident rather the ops have never approached this Commission to pass such order to produced DL of the deceased for settlement of the claim. It is not proper to hold on mere presumption that, owner/driver of the vehicle had no valid DL at the time of accident in absence of cogent evidence in this regard as such we are unable to conclude that, the O.P /insurance company is not liable to pay the insurance benefit to the complainant.(Reliance place on Fukani Devi Vrs Senior Divisional Manager National Insurance Company Ltd. and Another repotted in 2020 NCJ 905 (NC).)

26. It would this be seen that the complainant was obviously under depression  on account  of death of her husband and that was the reason she was  not able to give the requisite notice to the insurer through tolled  free telephone number.  The state of mind of a Hindu widow on the sudden death of her husband cannot be understood .The complainant could never be expecting such a sudden death of her husband. All the human beings could not react uniformly to a similar event in their life. It is quite likely that the complainant was so much overwhelmed with grief on account of sudden death of her husband that, she went in on deep depression cannot be ruled out. Such a person would obviously not be in a position to approach to insurer unless & until   she is able to come out of the depression from which she is suffering. Therefore, in our opinion, though the complainant not being able to submit the claim through tolled free number to the insurer still the insurer ought to have considered the claim on merits on received of information of loss in any manner. Reliance may place on the Circular dt. 20.09.2011 issued by the Insurance Regulatory & Development Authority, where in repudiation on the ground of delay intimation was deprecated AND on another judgment of the Honorable National Commission in Santosh Umakant vrs TATA A.I.G General Insurance Co.Ltd. reported in 2019, NCJ 599(NC),held that ,repudiation of claim merely on delayed intimation is not justified .) 

27. The Learned Counsel for the O.P No.1/Insurer submitted that, as per the term & condition of the policy, the complainant should register the death claim before the insure through Toll Free Phone Number as mentioned in policy copy but in this case complainant never taken any steps to lodged the claim through toll free number nor she has informed the insurer through Regd. post or by Email. So also the complainant has not filed the death claim in time as per the term and condition of the policy as same is barred by limitation is not acceptable for that, on perusal of  the record it is  found that accident is repotted earliest before the law enforcing authority vide FIR No.85 Dt.01.06.2020 of M.Rampur Police Station and there is an Inspection Report of Fatal Accident available on the record duly conducted by the RTO, Kalahandi , further pleader notice with a request to registered and to settle the insurance claim to the insurer and even after receiving of the copy of this complaint , we found no iota of evidence that, the insurer/O.P No.1 has ever responded  the request of the claimant rather tried its best to absolve from its liability under the said insurance contract is certainly unfair & deficient service.

28. In Himansu trading co. ltd Vrs New India Insurance Company Ltd. 2022 (1)CPR 307 (NC) it is held that, it is mandatory for the insurer to appoint a surveyor for assessment of loss exceeding Rs.25,000/- under U/S 68 UM of Insurance Act 1938 . But hear, in this case no surveyor is deputed to ascertain the nature and extent of loss caused to the insured rather, the insurer is trying to free from its liability to pay the insurance benefit to the complainant at this peril receiving adequate premium/consideration is clear instance of unfair trade practice and deficient service on the part of O.P No.1/insurer which no doubt caused financial loss, harassment & mental agony to the complainant need to be compensated.

29. Loss caused to the insured on 01.06.2020 this complaint is present on 22.09.2021 i.e within the period of time as prescribed under C.P. Act .As insurance claim of the complainant is not yet settled there is sufficient cause of action to present this complaint. The complainant is residing at Podelkona, Po-Madanpur,Ps-M Rampur, Dist-Kalahandi,Odisha and in view of the afore said discussion it is  well within the jurisdiction of this Commission .Further in absence of cogent evidence in the record the   preliminary objection  raised by the Op that, complaint  is barred by principle of estoppels, waiver, acquiescence, limitation, non joinder and misjoinder of necessary parties are rejected.

31. There is nothing allegation of deficiency in service or unfair trade practice is proved against the Manager (claim ),M/S Hero Fin Crop.Ltd.(OP No. 2)   hence ,complainant against  it be  dismissed.

32. Based on the above discussion we are of the view that, the complainant is entitle to the insurance benefit available to her under the said insurance policy vide  No.P0021400007/4113/100233 and further the complainant is need to be compensated adequately by imposing cost of same amount upon the OP. No.1 for the financial hardship & mental agony caused to the complainant due to  unfair trade practice & deficient service of the op No.1 payable  within a stipulated period of time.

33. On the basis of the above discussion and settled principle of law we are of the considered view that , the OpNo 1 (one) is  playing Unfair Trade Practice and   deficient service hence, complainant is allowed in part on contest against the OP.NO 1 (one) and dismissed against the the Op No. 2(two). Hence it is ordered.

Order.

The Insurance Company / OP NO.1 (one) is directed to pay the insurance benefit of Rs 15,00,000/- (fifteen-Lakh) under Police No . No.P0021400007/4113/100233 to the complainant and further OP NO.1(one)  is  directed to pay the same amount to the complainant as cost for suffering caused due to Unfair Trade Practice & deficient service along with litigation cost of Rs.10,000/- . This order be complied within  four weeks from the date of receiving of this order failing which the insurer /OP.NO.1 is  liable to  pay interest @ 12 per annum over the said awarded amount since the date of filling of this complaint i.e. 22.09.2021 till its actual payment.

 The pending application if any is also stands disposed off accordingly.

Dictated and corrected by me.

President

         I   agree.

        Member                                                             President

Pronounced in open Commission today on this   2^nd December 2022 under the seal and signature of this Commission.

Free copy of this order be supplied to the respective parties or they may download the same from the Confonet to treat the same as copy of the order receipt from this Commission. Order accordingly.

        Member                                           President